Fatuma Awadh Said El Hind v Salima Ali 1987 TLR 156 (CA)

 

FATUMA AWADH SAID EL HIND v SALIMA ALI 1987 TLR 156 (CA)

Court Court of Appeal of Tanzania - Tanga

Judge Omar JA, Mfalila Ag JJA and Mapigano Ag JJA

28th November 1987 B

Flynote

Administrative law - Formulation of a Master Plan in an urban area - Failure to comply with mandatory procedure laid down in governing legislation - Effect - s. 27 Town and Country Planning Ordinance.

Land law - Formulation of a Master Plan in an urban area - Whether it extinguishes existing property rights

-Headnote

This case involved a dispute over a plot described as Plot No. 1 Block 38 Ngamiani D Area, Tanga Municipality. In the High Court the evidence of the land officers was that prior to 1975 the plot in dispute consisted of two plots. The first plot was occupied by the respondent and the second occupied by the appellant. In 1974 the whole of Ngamiani was resurveyed under the Tanga Master Plan re-organization scheme, purportedly done under the Town and Country Planning Ordinance whereby existing E plots were reorganized and amalgamated. In this exercise the two adjacent plots were amalgamated and became one plot. The trial court gave judgement to the appellant, but on appeal to the High Court the trial court's decision was reversed hence the present appeal. F

Held: 

(i) The legislation provides for two kinds of publication. The publication under section 27 refers to the declaration by the Minister that he intends to apply the provisions of the Third Schedule. Secondly, after he has prepared the scheme he must deposit a G copy of such scheme at a place deemed appropriate and a notice of such deposit must then be published in the Gazette, to enable members of the public to inspect it. There is no requirement for publishing the fact in the gazette;

(ii) since the Tanga Master Plan was drawn up and implemented in H contravention of the Town and Country Planning Ordinance, any actions purportedly taken under it were unlawful;

(iii) the formulation of a Master Plan or Scheme extinguishes all property rights since all the existing boundaries are expunged and plots re-surveyed for re-distribution.

Case Information

Appeal allowed. 

No cases referred to.

[zJDz]Judgment

Mfalila and Mapigano, Ag. J.A. and Omar, J.A.: The dispute over the plot B described as Plot No. 1 Block 38 Ngamiani area in Tanga Municipality, and which is the subject matter of these proceedings started way back in 1975. The parties referred their dispute to the judicial process in 1980 and has been raging ever since. Each party claimed to be the true and lawful owner or occupier of the plot. C

Both parties in our view in their respective evidence either gave an incorrect and even untrue account of the origin of the dispute or side stepped the issue altogether.

The appellant, the original plaintiff, told the trial court that she bought the house standing on the plot from one Kanji and that at that time she did not know the plot boundaries. She therefore asked the Municipal Surveyors to survey and demarcate the plot. They did so and designated it plot No. 1 Block 38 and granted her a right of occupancy for 33 years. At this stage, she said, she had building plans prepared as she wanted to build E a hotel on the plot and started putting materials on the site. But, she could not proceed with her building plans because the respondent was occupying the plot and still refuses to vacate.

On her part the respondent, the original defendant told the trial court that she has been in occupation of the plot for many years and that on 26.11.76 she was given a temporary Right of Occupancy over the plot. Later she was offered the choice of buying the house on the plot. She never took up the offer she said, but she asked the court to declare her the legal occupier of the plot.

Both these accounts in our view do not accurately describe the true history of the dispute G as each party tried to portray herself as the only true and original owner of the plot which is nowhere near the truth.

The true and correct position was described by the Land Officers who gave evidence on H both sides. These were the District Land Officer Tanga, Mr Salehe Mussa Msumi, the Regional Land Officer Mr. Francis Ramadhani and a Land Officer from the Ministry Headquarter Mr. Sadiki Mrisho Matuta. The sum total of their evidence was that prior to 1975 the plot in dispute consisted of two plots. The first was plot No. 1 Block 38 I which was occupied by the respondent. The second was plot No. 15 block 38 which was occupied by the appellant. Before 1963 both plots were freehold but after 1963 they A were held under short terms of Rights of Occupancy under the new Government Leases Act. In 1974 the whole of Ngamiani areas was re-surveyed under the Tanga Master Plan re-organization Scheme whereby existing plots were reorganized and amalgamated. In this exercise the two adjacent plots i.e Plot No. 1 and 15 of Block 38 were B amalgamated and became one plot known is Plot No. 1 Block 38. The two original plot ceased to exist. The new enlarged plot was offered to the appellant on the basis that she had developed her portion of the plot better by putting up a permanent structure C that the respondent who had a temporary grass thatched structure on her portion of the plot. Instead, the respondent was offered another adjacent resurveyed plot in the area which she turned down insisting that she wanted plot No. 1 Block 38.

This is the history of the plot as given by disinterested witnesses. It is therefore not true as each party claimed that she owned the plot from the beginning and that the other was the trespasser.

The trial magistrate accepted the evidence of the witnesses from the Land Office and held that the appellant was currently the lawful owner of the plot in dispute by virtue of E its allocation to her after the amalgamation of the two plots. He however declined to treat the respondent as a trespasser in view of the fact that she still is holding a valid lease under a previous grant which had not been revoked following the amalgamation of the plots. Accordingly he entered judgment for the appellant, ordered the eviction of the F respondent from the portion she was occupying and perpetually restrained her from interfering in any manner with the appellant's peaceful possession and occupation of the plot in dispute.

Against this decision the respondent successfully appealed to the High Court. She argued that the grant to the appellant of the Right Occupancy over the disputed plot for G 33 years was unlawful null and void because her previous interest in the land having not been revoked, there was nothing the Land Officer could give to the appellant.

The learned judge agreed with this argument and allowed the appeal on two grounds. The first was that the respondent's claim over the plot was first in point of time and therefore had priority over the appellant's claim which came later when she was granted the 33 year Right of Occupancy before the respondent's right had been revoked. The grant therefore to the appellant of the 33 years Right of Occupancy was unlawful, null I and void. Secondly he held that the Tanga Master Plan upon which the grant of 33 year Right of Occupancy to the appellant was based, did not exist and even if existed, he was of the firm view that the formulation of a Master Plan or Scheme for any urban area, ipso facto put an end or extinguish existing proper rights of any occupier. Accordingly he allowed the appeal B and set aside the judgement and orders of the lower court. He further "directed that the respondent now be allowed to enjoy her right of occupancy under the frame work of the law of this country".

In this appeal the appellant challenged this decision and orders. In her Memorandum of Appeal, she challenged the judge's finding that the respondent's title on the plot was first in point of time to hers thus giving it priority and his failure to declare her the development owner under the Land Acquisition Act No. 47/67. See section 36 and 40 of the Act. She even challenged the finding that there were two plots prior to 1974 one D of which was plot No. 15.

This plot she said never existed and that it was quoted on the documents in error. We are satisfied in the light of the evidence given by the Land Officers at District, Regional and National levels that this last point has no merit. We accept and we shall proceed on the basis that originally Plot No.1 Block 38 was two E plots namely Plot No. 1 and plot No. 15 which belonged to the respondent and appellant respectively. Indeed in the circumstances of this case it is the only way this dispute could have risen.

As indicated, the learned judge allowed the appeal on two main grounds. Firstly, on the priority of the two competing claims in terms of which of them was the first in time. He held that the respondent's claim had priority over the appellant's claim and that since at the time of the grant of the 33 Years Right of Occupancy to the appellant the respondent's title had not been revoked, the grant to the appellant was unlawful, null and G void. Secondly that the Tanga Master Plan the basis of the grant to the appellant did not exist and that even if it did, it did not have the effect of extinguishing existing property rights.

The learned judge (Chua, J.) who heard the application for leave to appeal to this court, formulated the following points of law to be determined by this court:

(a) If the scheme did come into effect prior to the amalgamation of the plots, would the act of amalgamation be lawful? I

(b) Would the amalgamation automatically revoke the right of occupancy which had been granted to respondent? 

(c) What remedies would the respondent have.

We are not happy with this formulation because we cannot see how the amalgamation of the plots could have been undertaken before the scheme came into effect. We think in the light of the judge's finding the main question revolves around the existence of the Master Plan and its validity.

In stating that the respondent's claim over plot No. 1 had priority over the appellant's claim, the learned judge must have been referring to the short term titles issued after the area was declared a re-development area by the Minister vide G.N. 185/65 on 24.4.65. But we do not see how this short title over the old plot No. 1 has any bearing over the current dispute which relates to the new and enlarged plot No. 1 Block 38 and D which is the subject matter of the grant to the appellant of a 33 year right of occupancy. The validity of this grant cannot be impunged on the basis that it is later in time than the respondent's title, which referred to a different plot. The respondent can only succeed by successfully challenging the validity of the act of amalgamating her old E plot No. 1 with the appellant's old plot No. 15 into a single plot No. 1 Block 38 under Tanga Master Plan. All the Land Officers testified whether for the appellant or the respondent to the effect that the plot now in dispute i.e plot No. 1 Block 38 Ngamiani areas was created from the amalgamation of two adjacent plots in the course of implementing the Tanga Master Plan - the two amalgamated plots Nos. 1 and 15 had been occupied on short term titles by the present disputants. The Land Officers told the trial court that the new enlarged plot so created had to be offered to one of the former owners of the two old plots. The plot was offered to the appellant because she had put G up a more permanent structure on her portion of the plot than the respondent who had a simple grass thatched hut.

The soundness of this criterion was not challenged. But the point was taken both in the High Court and in this Court that this amalgamation and the subsequent grant of the amalgamated plot to the appellant was invalid because the H Master Plan upon which it was based either does not exist or if it does it is invalid for having been effected without complying with the relevant governing legislation i.e section 27 of the Town and Country Planning Ordinance Cap. 378. The basis for the view that the much talked about Tanga Master Plan did not exist is that nobody produced the I Master Plan itself or the Government Notice bringing it into effect. We are very surprised that the document or A plan which was talked about so much by all the officials including the Town Planning Officer should not have been obtained from the Office of the Municipal Director in Tanga and exhibited in court. Counsel who represents the appellant, fully aware of the B importance of this document to his client's case sat idly by all this time when he could have walked the few metres to the Municipal Hall to obtain the plan. However we tend to agree with the observation of Chua, J. that the existence of such a Master Plan is more likely than not in view of strong references to it by officers better placed to know C of its existence. Its non production is a result of incompetence and negligence. We would therefore accept the evidence of the witnesses to the effect that there was a Tanga Master Plan in the course of whose implementation plots No. 1 and 15 Block 38 were D pooled and a single enlarged plot No. 1 Block 38 created and granted to the appellant. The validity of this grant to the appellant depends on the validity of the Master Plan under which it was created and granted.

A Master Plan or detailed scheme such as the one envisaged here is conceived and prepared under the provisions of section 27 of the Town and Country Planning E Ordinance (Chapter 378). The section provides as follows:

27-(1) Where the Minister is satisfied that, by reason of the complexity of the boundaries of land within an area scheduled or likely to be scheduled in a general planning scheme F for detailed planning, the preparation and execution of a detailed scheme for the orderly layout and development of land is impractical unless provision is made for the redistribution of land in that area, he may by notice in the gazette declare that the G provisions of the third schedule shall apply to such land and, thereupon, such detailed scheme may make provisions for the redistribution of land in accordance with the provisions of the third schedule, and the provisions of the third schedule shall apply to H such land in the execution of the scheme.

(2) Any reference in this Ordinance to a detailed scheme to which the provisions of the third schedule are applied under section 27 shall be construed as reference to a detailed scheme in which provisions may be made for the redistribution of land in accordance with the provision of the Third Schedule.

The relevant provisions of the Third Schedule relating to redistribution of land in areas scheduled for detailed schemes to which section 27 applies provide as follows:

(1) All land to which the provisions of section 27 and this schedule have been applied within an area scheduled or likely to be scheduled for a detailed scheme shall be pooled and the boundaries of all plots and holdings therein shall be expunged.

(2) The detailed scheme shall provide for the equitable redistribution of plots or holdings in the land so pooled among the owner of plots or holdings pooled. 

The Third Schedule then provides for the pooling and redistribution of plots or holdings so pooled in areas effected by or subject to a detailed scheme. But before this is done as was done in this case, the provisions of section 27 must be complied with by the Minister, namely that he must by notice in the Gazette declare the application of the E provisions of the Third Schedule to the area in question and only then may such a detailed scheme make provision for the redistribution of land in accordance with the provisions of the Third Schedule.

The question at this state is whether the provisions of section 27 were complied with before the provisions of the Third Schedule were applied to the Ngamiani area. While we were able to say from the evidence of the land Officials and Town Planning Officer that the Tanga Master Plan existed, there is no way by which we can be satisfied that the G provisions of Section 27 were complied with unless we see the relevant notice in the Government Gazette. We were referred to none, and none was shown to us. The only conclusion we could reach in the circumstances is that the provisions of section 27 were not complied with before the provisions of the Third Schedule were applied to Ngamiani H area. Consequently the pooling and redistribution of the plots in the area including plots No. 1 and 15 was unlawful and therefore invalid. The main reason for the mandatory requirement to publish a notice of the intention to apply the provisions of the Third Schedule to an area so as to afford the inhabitants of the area an opportunity to I lodge their objections. In the present case we can see the respondent putting up quite a spirited objection if there had been such a notice. She was not afforded such A a chance. The Tanga Master Plan was therefore drawn up and implemented in contravention of the Town and Country Planning Ordinance. Any actions purportedly taken under it were unlawful.

But we hasten to add by way of correcting the impression created by the learned judge B that a Master Plan or detailed scheme cannot come into effect unless it is published in the Gazette.

Dealing with this aspects of the case he said:

As aforesaid the coming into effect of a scheme or any planning scheme or even a mere inception whereof is a master of law and must be published in the official gazette. This was not done. At any rate no relevant Government notices were quoted by P.W.1, P.W.2, P.W.3 and D.W.1 in this matter. As a matter of law it will therefore, be erroneous for anyone merely to assume, no matter on whose word of mouth, that the said scheme did come into effect.

With respect, we think the learned judge mixed up the legal requirements. The Ordinance does not provide anywhere that the coming into effect of a detailed scheme must be published in the Gazette. The legislation provides for two kinds of publication. The publication under section 27 of the Ordinance refers to the declaration by the Minister that he intends to apply the provisions of the Third Schedule to a particular area. Secondly having done so and prepared a scheme in accordance with the Third Schedule, he must deposit a copy of such a scheme at a place thought appropriate and a notice of such deposit must then be published in the gazette.

The purpose again is to enable members of the public and other affected authorities to know where the scheme is and inspect it for the purpose of lodging objections if any. When all these steps have been taken and after the lapse of time given for lodging objections, the scheme is adopted and comes into effect. There is no requirement for publishing the fact in the gazette.

Before reverting to deal with the practical effects of our finding on the validity of the Master Plan, we wish also to say briefly about the consequences of applying the provisions of the third schedule to an area. With regard to this the learned judge had this to say:

Even if I were held to have erred on this point, I am of considered and firm view that the formulation of a Master Plan or scheme for any urban areas does not, ipso facto, put an end or extinguish existing property rights of any occupier and I so hold.

We think this considered and firm view is contrary to the provisions of the Third Schedule itself in so far as the application of the provisions of that schedule to a B particular area is necessary before any Master Plan or scheme can be prepared. As noted earlier the provisions of section of the Third Schedule provide for the pooling and redistribution of all plots and holdings in the course of which all boundaries between such plots and holdings are expunged. We fail to see how existing property rights can C remain unaffected a situation where all the existing boundaries are expunged and the plots resurveyed for redistribution. The schedule itself foresaw this and provided the manner of redistributing to owners of plots and holdings so affected. See section 3 to 7 of the Schedule.

We shall now revert to determine the rights of the parties in the light of our findings. The learned judge was more fortunate in that he found himself able to make a general order that the respondent "now be allowed to enjoy her right of occupancy under the frame work of the law of this country". In view of the real situation currently obtaining on the E ground, we fail to see how the respondent can go about enjoying her right of occupancy even under the framework of the law of this country. There is no plot for her to enjoy. Rightly or wrongly her old plot as well as the appellant's plot are no more. The respondent's plot No. 1 is not there. The real situation on the ground is therefore such F that there is nothing that the court can give her.

Her plot is no longer on the survey maps of this country. The survey maps of this country have a plot No. 1 Block 38 which for very good reasons was given to the appellant. Since this plot has no relationship to the plot to which the respondent thinks she is entitled, her interests are simply competitive and in the view of those who redistributed the plots, the appellant had a better claim by reason of her superior development on the property. If the granting of this plot to the appellant was irregular it would not become regular by simply giving it to the respondent who in any case has an inferior claim to it.

In the circumstances and in view of the real situation on the ground, the sensible and practical thing to do is to leave undisturbed the 33 year Right of Occupancy granted to the appellant who should now proceed without any hindrance to effect the development on the plot. The respondent should vacate the plot and take another plot in the vicinity which the Land Office, is directed to offer and grant her as the law requires them to do in such circumstances. To this extent we allow the appeal.

With regard to costs, counsel on both side agreed that in the circumstances of this case each party should bear her own costs both here and in the courts below. We agree and B therefore make no orders for costs both here and in the court below.

Appeal allowed.

1987 TLR p165

D